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CASE NO.: Appeal (civil)  7875-7876 of 2001

PETITIONER: Kaliyamma & Ors.

RESPONDENT: Deputy Commnr.Chitradurga Distt. & Ors.

DATE OF JUDGMENT: 03/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the judgment of a  Division Bench of the Karnataka High Court dismissing the  writ appeal filed under Section 4 of the Karnataka High Court  Act ,1979 (in short the \021High Court Act\022).  Challenge in the  appeals was to the judgment of the learned Single Judge of the  Karnataka High Court.

2.      Background facts in a nutshell are as follows:

       Eight acres of land in Survey No.59 were granted to two  persons namely Rangappa and Nagappa sons of Kariyappa.   According to the appellants, the said Nagappa and Rangappa  formed a joint family with one Budappa and in a partition, out  of eight acres of joint family lands, five acres were given to  Nagappa and three acres were given to Budappa. The said  Budappa sold three acres of land to one Thippreeranna by  registered sale deed dated 3.2.1965 and remaining five acres  of Nagappa were acquired by the vendee in the Court auction  on 15.8.1966.  Aforesaid Thippreeranna sold eight acres of  land under the registered sale deed dated 23.2.1981 in favour  of Devraj and the appellants herein are his legal heirs.  The  Karnataka Schedule Castes and Schedule Tribes (Prohibition  of Transfer of Certain Lands) Act, 1979 (in short the \021Act\022)  came into force with effect from 1.1.1979.   One Rangaswamy  claiming to be the son of grantee Rangappa and one Sanna  Karriyamma claiming to be the legal representative of Nagappa  filed application for declaration that the sale was null and void  and restoration of possession from the purchaser before the  Assistant Commissioner Chitradurga Sub Division.

       These applications were clubbed and enquiry was  conducted.  The Assistant Commissioner came to hold that  when the grant was in favour of general category, the  allotment was in Form-I and when it is in the name of persons  belonging to the Schedule Castes and Schedule Tribes, it is in  Form II.  

3.      It was the stand of the appellants that the grant was  made in Form I and, therefore, the land will not come within  the purview of the depressed class category and would be  under the general category.  Therefore, it was submitted that  since they were in possession for more than 12 years from the  date the Act came into force they have perfected the title by

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adverse possession.  Legal representatives of the grantee filed  appeal under Section 5A of the Act before the Deputy  Commissioner.  The said Authority allowed the appeal and set  aside the order of the Assistant Commissioner holding that in  these cases grant has been made during 1957 under the Land  Revenue Code and the right of possession in respect of the  grantee is limited.  It was noticed that there was a condition  not to alienate the land in question for a period of 10 years.  In  these cases the alienation took place much before completion  of the ten years\022 period.  Since the land was alienated during  the non-alienable period, the land vested with the  Government.  It was also noticed that the period would be 30  years and not 12 years as contented.        4.      The matter was challenged by the appellants before the  learned Single Judge who dismissed the writ petition but inter  alia directed as follows:               \023Whether respondents 2 & 3 have been  the legal heirs of the grantee either as sons or  adopted sons or in any manner under the law.   That question has yet to be decided by the  Assistant Commissioner when he has to  restore the land to the grantee or his heirs in  pursuance of the appellate order.  Before  actual delivering and restoring possession, the  Assistant Commissioner should examine this  question and if grantee or heirs are found in  possession, the possession has to be restored  to them.  But if it is not practicable and  possible to restore possession of the granted  land to the grantee or his heirs under Section  5(1)(b) later part will automatically stand  vested in the Government.\024

5.      The matter was carried in writ appeal.  As noted above,  the same was dismissed by the impugned order.

6.      The stand taken before the High Court essentially was  that the land was granted under the non-depressed class  category and, therefore, the period is 12 years to substantiate  the plea about adverse possession.

7.      Learned counsel for the respondents on the other hand  supported the orders passed by the Deputy Commissioner and  the High Court which held that the appellants were not the  first purchasers, they in fact are the second purchaser, and in  both Forms 1and Form 2 the non-alienable period is the same.   

8.      Above being the position there is no merit in these  appeals.  Similar issues came up for consideration before this  Court in Guntaiah and Ors. v. Hambamma and Ors. [2005 (6)  SCC 228].  In paragraph 8 of the judgment, it was inter alia  observed as follows:   \024The finding of the Full Bench of the  Karnataka High Court is that if the grant is  made under Rule 43-J, there could not have  been any condition restricting the alienation  and if at all there were any such conditions  they are null and void. This view has been  taken for the reason that conditions restricting  alienations are given under clause (4) of Rule

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43-G and these provisions would apply to  grant of lands made under the preceding rules  and not apply to Rule 43-J which comes after  Rule 43-G of the Rules of 1960. This view has  been taken based on the title/marginal note of  Rule 43-G. The Full Bench was also of the view  that under Rule 43-J, it is not stated that  there shall be any conditions prohibiting  alienation. Therefore, the Court held that  Authorities were not empowered to impose any  such conditions.\024       9.      In view of what has been stated above the inevitable  conclusion is that the appeals are without merit, deserve  dismissal, which we direct. There will be no order as to costs.